Theophane and Hunt and Anor
[2016] FamCAFC 87
•24 May 2016
FAMILY COURT OF AUSTRALIA
| THEOPHANE & HUNT AND ANOR | [2016] FamCAFC 87 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders providing for the parties’ child to live with the mother and spend no time with the father – Where the father was self-represented on appeal – Where the errors alleged on appeal were not easily discernible – Where the Full Court identified and considered a number of complaints – Where no complaint was found to have merit – Appeal dismissed – Father to pay the costs of the mother and the Independent Children’s Lawyer in a fixed sum. |
| Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B(2), 65D, 69ZN(4), 69ZQ(1), 69ZQ(1), 102QB(2), 117 Family Law Rules 2004 (Cth) Schedule 3 |
| Cannon & Acres [2014] FamCA 104 |
| APPELLANT: | Mr Theophane |
| RESPONDENT: | Ms Hunt |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 1089 | of | 2007 |
| APPEAL NUMBER: | NA | 79 | of | 2014 |
| DATE DELIVERED: | 24 May 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, May and Cronin JJ |
| HEARING DATE: | 24 November 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 November 2014 |
| LOWER COURT MNC: | [2014] FamCA 1038 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms McMillan QC |
| SOLICITOR FOR THE RESPONDENT: | O’Reilly Stevens Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
The appeal filed 19 December 2014 be dismissed.
The application in an appeal filed 5 November 2015 is dismissed.
The father pay the mother’s costs of and incidental to the appeal fixed in the sum of $4,040.70.
The father pay the Independent Children’s Lawyer’s costs of and incidental to the appeal fixed in the sum of $4,040.70.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Theophane & Hunt and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 79 of 2014
File Number: CSC 1089 of 2007
| Mr Theophane |
Appellant
And
| Ms Hunt |
Respondent
And
| Susan Gray |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
On 24 November 2014 Tree J made orders by which the relationship between Mr Theophane (“the father”) and his only child (“X”, “the child”) (now aged nine) was restricted to a card or letter being sent on two occasions per year until she attained the age of 18 years. Orders were also made that the child live with her mother Ms Hunt (“the mother”) who was granted sole parental responsibility.
Tree J made additional orders restraining the father from otherwise having any contact with the child and restrained him by a vexatious proceedings order
(s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”)) from instituting future parenting proceedings without leave of the court.
The father now appeals all orders made by Tree J on 24 November 2014. Both the mother and the Independent Children’s Lawyer oppose the appeal.
In our view, for the reasons that follow, the father’s appeal against those orders fails.
Grounds of appeal
The father represented himself throughout the trial and also on the appeal.
His assertions of error by the trial judge were difficult to identify. He prepared both the grounds of appeal and his summary of argument. It was a jumble of claims and complaints some of which were unintelligible. When asked to clarify various errors complained about, the answers given by the father simply obscured the points.
As the polite submission of the Independent Children’s Lawyer put it, the grounds of appeal and the summary of argument filed by the father are not easily discernible in their current form.
We have taken into account what the High Court said in Neil v Nott (1994) 121 ALR 148 that a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. This is in the category of cases to which the High Court referred.
As we understand the father's appeal he asserts error in the making of the parenting orders for the following reasons:
a)The father was not accorded procedural fairness;
b)There was not a proper consideration of s 60CC of the Act and the trial judge should not have accepted the evidence of the expert witnesses;
c)The trial judge refused to disqualify himself and was biased, demonstrated by failing to accept the father's submissions and making reference to cases decided by another trial judge;
d)The trial judge refused to remove the Independent Children's Lawyer; and
e)The trial judge failed to properly consider the father's witnesses and prevented him from comprehensively cross-examining the family consultant.
Transcript of the trial
As is the practice of the court, the father was ordered to prepare the appeal books and provide the transcript of the trial proceedings. He maintained to the Appeal Registrar that he did not have the capacity to do so and sought that the court prepare the appeal books as well as provide transcript. The Appeal Registrar assisted the father in respect of the appeal books but adjourned the issue of the requirement of the provision of transcript to this court.
Albeit out of time, the mother sought to review the Appeals Registrar’s decision and her application came before May J on 21 October 2015.
May J ultimately set aside the Appeals Registrar’s decision about the transcript. The following passage from the reasons of May J encapsulates why that order was made but also sets the foundation for some of the problems that the appellant father, as well as the court, faced upon the appeal. Her Honour said:
36.During the hearing of this application, the father was asked to explain how he intended to argue his case without the transcripts. The father repeatedly assured the court he did not require the transcripts, and if the mother wished to have them she should bear the cost. As the father is a litigant in person, it was explained to him that if he intended to make arguments surrounding procedural fairness and alleged bias of the primary judge, it was the usual course to use transcripts to demonstrate error and he may be called upon by the Full Court to show where in the transcript the error occurred. The father, again, assured the court he could establish these grounds from the reasons and other documents.
On appeal, the father reiterated there was no need for the transcript but then at various times disputed observations of the trial judge that the father had not challenged the opinions of professional witnesses during cross-examination including as to their expertise. For example, he maintained that when he asked the family consultant whether she had read a particular psychiatrist’s report, she denied she had. Without transcript, it would be difficult for this court to know what happened and whether it made any difference. We saw no other solution than to obtain the relevant parts of the transcript. Those parts of the transcript have been made available for the father at the expense of the court. No party objected to that course and as such, we have done so and will make reference where relevant.
Having obtained the relevant parts of the transcript which were then also made available to all parties, the father sought (and was granted) an opportunity to file a further submission and he did so. The mother and the Independent Children’s Lawyer chose not to respond. Nothing in the father’s supplementary submission assisted his appeal.
The position of the mother and the Independent Children’s Lawyer
Both the mother and the Independent Children’s Lawyer opposed the appeal. Both submitted that there were no identified or identifiable errors.
The summary of argument filed on behalf of the mother, the details of which were repeated in oral submissions, highlighted that the father had not pointed to any evidence to support his contentions.
The Independent Children’s Lawyer submitted that:
·The trial judge set out his findings in respect of the relevant s 60CC factors;
·The legislative pathway was discernible from the reasons;
·The trial judge had appropriately referred to the evidence of the father’s witnesses (at [136]);
·There was no evidence to support an assertion that the trial judge had pre-determined the matter;
·The father had not identified any error in respect of the s 128 certificate complaint (see s 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”));
·The findings of the trial judge as a result of the evidence of Ms B, Ms BK and Ms MK were open to his Honour; and
·In relation to making an order that the father have no time with the child, the trial judge understood the seriousness of such an order and had taken the relevant matters into consideration.
Vexatious proceedings order
It will be apparent that although the father appealed against all orders of the trial judge, he raised no ground of appeal in relation to the vexatious proceeding order and made no submissions about it in his summary of argument. We have examined that issue later in these reasons because of his appeal against all orders.
Application to adduce further evidence
On 5 November 2015, the father filed an application to adduce further evidence. Much of the affidavit in support did not deal with further evidence at all. Ultimately we were able to discern two matters which could form the basis for the application. First, in a hearing before May J on 21 October 2015, counsel for the mother had said that the father had never applied to remove the Independent Children’s Lawyer. The father demonstrated (attachment marked “A1” to the application to adduce further evidence) the assertion of counsel was incorrect and that he had applied for such an order before Tree J. We will discuss the application to remove the Independent Children’s Lawyer in more detail below. The father informed us that he wished to adduce the evidence to demonstrate a credit issue with the mother’s counsel as well as correcting an incorrect statement.
The father said the second matter was intended to demonstrate his attempts to have the child returned to him. He explained that he had made applications to the trial judge (attachment marked “A2” to the application) but he felt that they were not properly heard and determined. He clarified that this evidence was meant to demonstrate apparent bias of the trial judge in refusing his interim applications. Bias is a specific subject to which we also turn below.
Each of the matters is dealt with in these reasons. The incorrect statement by counsel for the mother did nothing to advance the father’s appeal. The credit of counsel was not in issue. The interim applications to which the father referred were adequately described by the trial judge.
In our view, insofar as there are matters that could be considered as further evidence, all the factors we consider relevant to the exercise of the discretion inherent in s 93A(2) of the Act and referred to in CDJ v VAJ (1998) 197 CLR 172 mitigates against its admission and we will accordingly dismiss the application.
Relevant background history
The following historical facts have been taken from the judgment of the trial judge and were not in dispute.
At the time of trial, the father was 48 years old and the mother was 35.
When the parties met in 2005, the mother was working in an adult entertainment venue in Melbourne and the father was renovating properties.
She described the father as her “customer”, a status he denied.
Shortly after meeting in 2005, the father invited the mother to live with him on the Gold Coast where he exuded an extravagant lifestyle. They were engaged in January 2006 and the mother became pregnant. The parties’ child was born in 2006. One year later, the relationship ended and the parties separated. A domestic violence order was made against the father in late November 2007.
Both parties then moved to Far North Queensland. There, litigation began and on 4 March 2008, interim consent orders were made for the child to live with the mother and for her to spend time with the father.
On 15 October 2008, further interim orders were made by consent under which the mother was to have sole parental responsibility. There was then the substantive parenting dispute outstanding.
The first parenting trial before Benjamin J followed in 2009. Benjamin J recorded the father’s proposal that the child live with him was based on his claim that the mother was an unacceptable risk to the child. On 6 November 2009, after rejecting that risk, Benjamin J ordered that the child live with the mother and that she have sole responsibility for her.
Benjamin J set out a regime of increasing time between the father and the child ordering that the father care for her on each alternate weekend from 8.30 am on the Friday until 4.00 pm on the Sunday and on each alternate Thursday from 10.00 am until 10.00 am on the following morning. The father had a significant role in the daily care of the child at that time.
In May 2011, the father brought contravention proceedings in the (then) Federal Magistrates Court against the mother. On 19 August 2011, Coker FM found the mother to have contravened the orders and ordered make-up time.
Conflict between the parties continued.
Having commenced a new relationship, the mother gave birth to Z in February 2010. In late August 2011, the mother claimed the father made a threat to her in the presence of the child that Z would go “missing”. This threat led to an incident in early September 2011. The mother attacked the father with a knife seriously injuring him. She was charged with attempted murder and remanded in custody. Expert evidence in the hearing before Tree J, and which was accepted by him, was that this behaviour of the mother occurred when she was in a state of dissociation. The father immediately applied to Benjamin J for an interim order that the child live with him. His Honour made that order on 5 September 2011.
On 6 September 2011, as the mother was released on bail, she applied for time with the child. On 26 September 2011, Benjamin J made interim orders for the mother and the child to have supervised time together. A week later, another interim order was made that the child live with her mother and father on a week-about basis.
In February 2013, the mother pleaded guilty to unlawful wounding in the Supreme Court of Queensland and was sentenced to 18 months imprisonment but was immediately released on 18 months’ probation.
In this same period, the mother made allegations to police that the father had raped her during their relationship. The police laid charges and in February 2014 he was committed to stand trial in the Supreme Court of Queensland. Those charges were still pending when the parenting proceedings were heard before Tree J in August 2014. We were advised by the father, without any disagreement from senior counsel for the mother, that the charges have now been withdrawn.
In 2014, disputes over the parenting of the child continued. For example, in April 2014, the father over-held the child and upon the mother’s application, Tree J directed him to return her. He did so.
On 27 May 2014, on the application of the mother, Tree J suspended the father’s time with the child. The basis of that order was that a family report had said that there were grave fears for the mother’s mental health if the father was to remain in the child’s life. The father opposed the order but did not appeal against it. The suspension of the father’s time continued up until the final trial began in August 2014.
Thus, the child has had no time with her father for almost two years.
The findings of the trial judge
In a careful and comprehensive judgment, the trial judge concluded after hearing the evidence of the parties:
·
The father displays personality traits which are coercive, and which use
a variety of antisocial means to achieve his desired objectives;
·The father focuses upon his own needs and not others’ and where his needs in a relationship conflicted with those of another party, he did not appreciate those other needs;
·The father was entirely focused upon meeting and satisfying his own goals, and satisfying his own needs; and
·In the context of a young child, there may be some limited adverse consequences of such a relationship (currently) but those concerns will become far stronger as the child ages, and her needs potentially come into conflict with the father’s.
It is the findings that underpin those statements that the father challenges.
While recognising that it is a serious matter to order that a child neither spend time nor communicate with a parent (at [55]) the trial judge assessed that there was a real risk of harm to the child posed by the father’s personality traits.
In respect of the vexatious proceedings order, the trial judge found, having detailed all of the various cases involving the parties, many had been vexatious. Some were intended to harass and intimidate the mother and others were without reasonable foundation.
The trial judge found the father had demonstrated an intention to relentlessly pursue the mother.
His Honour found that the father could not be trusted with the unfettered right to issue proceedings against the mother in relation to the child because he would abuse it.
Those findings have not been the subject of any ground of appeal other than the general assertion by the father of bias.
The Appeal
By his notice of appeal, the father sought orders that this court exercise its powers and order that the child live with him and that there be no time with the mother until the child turns 13 years of age. Because of the jumbled way in which the father put his case, it is convenient to deal with matters other than in the order he placed them.
Refusing to remove the Independent Children’s Lawyer
In [8(d)], we identified the father’s complaint that the trial judge erred in failing to remove the Independent Children’s Lawyer claiming that such a decision was “unjust for the best interest and welfare” of the child.
The father applied to the trial judge both in his initiating application filed on
4 December 2013 and in a response filed on 5 May 2014 that the Independent Children’s Lawyer should be removed.
On 26 May 2014, the trial judge dismissed the father’s application. The father did not appeal within the appropriate time against that order. It was not suggested that objection to the continuation of the role of the Independent Children’s Lawyer was voiced again when the trial began on 4 August 2014.
In our view, the father cannot now appeal against that order. It is useful, however, to consider the basis for the father’s application to remove the Independent Children’s Lawyer, lest it be thought that there was any substance to the complaint.
In the interlocutory hearing on 26 May 2014 the father asserted collusion between the Independent Children's Lawyer and the mother's solicitor, an example being the extent of their respective use of the same High Court authority of MRR v GR (2010) 240 CLR 461. The father accused the Independent Children's Lawyer of not acting in the best interests of the child because the child had told him she wanted to live with the father.
Tree J gave
ex tempore reasons on 26 May 2014 rejecting the assertions of the father indicating that nothing put to him demonstrated collusion. His Honour said that both practitioners reaching the same conclusion was not indicative of collusion. We agree.
In relation to the question of the views of the child, the trial judge then noted that the father had taped a conversation in which the child could be heard saying that she wanted to live with him. That became a controversial issue in the trial particularly when the trial judge came to deal with the views of the child under s 60CC of the Act.
In both the May 2014 hearing and the trial judgment itself, the trial judge observed that having regard to the child’s age (then seven years), it did not follow that her expression of wishes needed to be given decisive or indeed much weight because of her age.
On appeal, the father did not point to anything that would have suggested, let alone justified, a conclusion that the trial judge was wrong in rejecting his application to have the Independent Children’s Lawyer removed.
Bias and pre-judgment
Amongst the various “grounds” of appeal, there are a variety of complaints that we have distilled to the issues in [8]. Doing the best we can, a major complaint of the father is that his Honour was biased in that he pre-judged the case and ought to have disqualified himself.
The principles to be applied in respect of disqualification for apprehended bias are set out in Johnson v Johnson (2000) 201 CLR 488 and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. In the former, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at
492-493 as follows:
11.… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(footnotes omitted)
In Ebner, the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 348:
The principle to be applied
19.Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20.This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21.It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22.The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23.Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.
(emphasis added)
With those principles in mind, it is appropriate to deal with the complaints that underpin the father’s assertion of bias sequentially.
Trial judge refuses to recuse himself
The substantive trial began on 4 August 2014. On 5 August 2014, the father made an oral application that the trial judge recuse himself on the grounds of “actual bias and apprehended bias”.
The trial judge gave an extempore ruling dismissing the application. The basis of the father’s assertions of bias as described in the discrete judgment were as follows:
a)In May or June 2014, the trial judge had distributed in open court a decision of Benjamin J in Cannon & Acres [2014] FamCA 104 and as a consequence, was “telegraphing” his intention to make orders of the kind made by Benjamin J;
b)The copy of Cannon & Acres may have been seen by the family consultant or it may have been brought to her attention;
c)The trial judge had failed to give a “blanket” s 128 of the Evidence Act certificate in respect of criminal conduct and that, combined with the handing out of the decision in Cannon & Acres, indicated that he had prejudged the matter;
d)The trial judge had ordered a final hearing of the case rather than dealing with a threshold argument under the principles set out in Rice and Asplund (1979) FLC 90-725; and
e)
The trial judge had ignored submissions emailed to the Registry on
12 June 2014 for an interim hearing in June.
In his summary of argument on appeal, the father again asserted the matters that he put to the trial judge but otherwise said little more.
We consider these matters should be dealt with sequentially.
Cannon & Acres
Section 102QB(2) of the Act permits a court to make an order that a litigant be precluded from bringing further proceedings without leave of a judge. Relevantly, the commencement of this provision only concerned applications filed after 11 June 2013. The mother was seeking such an order against the father.
In Cannon & Acres, Benjamin J dealt with an application under s 102QB(2) where there had been a variety of proceedings in courts, some of which had been abandoned and others dismissed. There had been contraventions and one appeal. Benjamin J examined the legislation and set out what needed to be proved.
Tree J provided a copy of Cannon & Acres to all parties. The trial judge also noted that he had, only the previous evening, distributed the decision of this court in Helbig & Rowe (No 2) [2012] FamCAFC 175. He explained that as the mother had made an application for a vexatious proceedings order under s 102QB(2), he thought it would be useful for the parties to consider the analysis by Benjamin J of that provision and their application. In a similar way, the trial judge said he distributed Helbig & Rowe because he thought that it was a useful summary of authorities that might have assisted the father.
In dealing with the bias submission of the father, the trial judge said that he was not aware of any authority that indicated the distribution of a recent authority could be seen as pre-emptive or premature. His Honour ruled that a
fair-minded member of the public, properly appraised of the relevant circumstances, would agree. We agree also.
At various parts of his summary of argument, and in oral argument, the father referred to the “flawed and erroneous” reliance by the trial judge on Cannon& Acres. The misunderstanding by the father of the way in which legal authorities are used extended also to other cases that were mentioned, such as M v M (1988) 166 CLR 69. The father’s references to case law made it clear to us that he has no understanding (despite our attempts to explain) about the fact that references to previous cases were related to the principles arising from those cases rather than the facts. It emerged in discussion with the father that he held an irrefutable conviction that the cases needed to be factually aligned with the present case, otherwise use of them was demonstrably flawed. In essence, he believed that the cases that his Honour raised involved facts which were not relevant to this case and therefore they showed two issues. The first being that the trial judge was biased and the second being that there had been an error in the trial judge’s decision making. In particular, he asserted that Cannon & Acres was a case that was factually about sexual abuse and this case was not. Therefore, he submitted his Honour had erroneously taken into account principles arising in a case which was very different and should not have been used. The father made the same submission in relation to principles arising from M v M because that case, again, was about sexual abuse and this case was not.
It is thus clear that the father’s complaints both about pre-judgment and errors by the use of inappropriate authorities stem from a misunderstanding of the use of precedent and cited authorities. It is clear therefore that this argument could not possibly found an assertion of bias or pre-judgment, nor error in the application of the law.
The guidance that the trial judge in this case sought from authorities was obvious. Nothing in the father’s case indicated that he had not been given an opportunity to put his case comprehensively including, if necessary, to submit a particular course that the trial judge should have otherwise taken. The trial judge observed the distinct dichotomy of taking one parent out of the child’s life and its severe impact. His Honour noted that it should only be done with considerable hesitation. It will be evident from the judgment that his Honour adopted that position from the line of authorities to which he referred.
The trial judge set out the statutory scheme dictated by Part VII of the Act. Specifically, his Honour referred to s 60CA and the best interests principles. The father raises no complaint in relation to that, save perhaps that the trial judge refused to reinstate the child into his care and had misapplied s 60CC (Ground 2). In our view, this was a very carefully constructed judgment after the trial judge had heard evidence from a number of witnesses over eight sitting days.
Section 128 Certificate
As we have explained in [34], the parenting applications proceeded before
Tree J in August 2014 prior to the hearing of the criminal charges against the father. His Honour explained at [39] of the judgment that the parties “agreed the matter needed to proceed to trial rather than continue to await the outcome of the father’s criminal proceedings”. This raised the inevitable difficulty that s 128 of the Evidence Act applies, in particular in relation to the privilege available in respect of self-incrimination in other proceedings. In essence, if there are reasonable grounds for an objection to giving particular evidence on the grounds that that evidence may tend to prove that the witness has committed an offence, the court is obliged to inform the witness that evidence need not be given unless required by the court and that the court will give a certificate under s 128 if the witness either willingly gives the evidence or gives the evidence if required to do so and the effect of the certificate.
This issue was squarely raised with the father who sought a certificate. The father, however, sought a “blanket” certificate and the trial judge began by indicating that he was aware of a practice of Benjamin J in 2011 of providing a “blanket certificate” covering any cross-examination or inquiry of the parties dealing with criminal conduct. His Honour said that because of his understanding of s 128, he did not find that approach appealing.
Importantly, the trial judge said that as the trial was just beginning and he was conscious of the fact that the father had been charged with criminal offences, he would deal with those matters as and when the questioning arose.
As it transpires, on 8 August 2014, the trial judge granted the father such
a certificate covering specific evidence given about allegations of assault on the mother.
Although we have not specifically referred to the father’s “grounds” of appeal, in Ground 6 he said:
His Honour has failed section 128 of the evidence act [sic], in his reasons and judgment at trial to be impracticable and unjust to the child [sic] best interest, erred in law…
To the extent that Ground 6 is an assertion that his Honour failed to provide a certificate, it is without merit.
To the extent that it is an assertion that even discussion about whether or not a certificate should be given might be said to justify an allegation of bias, that is, that the trial judge had considered the allegations of rape sufficiently serious to warrant a certificate and had thereby pre-judged the parenting dispute, his Honour dealt with the protection of the rights of the father as he was expected to so do. His Honour gave no indication in his ex tempore reasons on
5 August 2014 that he had drawn any conclusion adverse to the father.
His Honour said:
A section 128 certificate looms as a large issue in this case, given that the father stands indicted, or at least committed to stand trial, on numerous counts of rape of the mother and one charge of grievous bodily harm to her. Plainly, that is likely to be a subject of cross-examination of the father and plainly the cross-examination, or more precisely his answers to questions in cross-examination, will stand the risk of incriminating him.
In addition to the father’s complaint that the manner in which the trial judge had dealt with the s 128 certificate indicated bias on his part, which we have rejected, he also argued that that there was error occasioned by the fact that no reference to the s 128 certificate was made in the final judgment. No specific ground was directed to this and, in any event, having given the certificate, which speaks for itself, there was no reason for his Honour to mention it and no error could possibly be occasioned by his failure to do so.
The father did not provide transcript and did not point to any other piece of evidence that might have enabled a conclusion to be drawn that something was said by the trial judge not otherwise accurately reflected in the extempore reasons. As best we can see, the trial judge correctly applied the test upon determining the father’s recusal application. We see no error or merit in the challenge under that heading.
The trial judge ordered a final hearing
As part of the father’s complaint that the trial judge pre-judged the case, the father asserted that his Honour wrongly ordered a final hearing rather than a further agitation of an interim application. The father asserted that was another reason why the judge should have disqualified himself.
In his reasons, his Honour noted that he was requested by the parties to take the former course because it was sensible and in the best interests of the child.
In extempore reasons for judgment delivered on 27 May 2014 his Honour noted that in the course of the hearing, there had been a concern about conducting the parenting trial with the father facing criminal proceedings. The trial judge said that none of the parties wanted to await the outcome of those proceedings. His Honour said:
5.…the parties have identified that rather than looking at interim orders which might inure for, as much as two years, really it is only interim orders that might last some months until the trial of this matter can finally be brought on that need to be the focus of the Court’s inquiry.
Thus, there is no substance to this complaint.
Trial judge ignored submissions emailed in June 2014
As we perceive it, another pre-judgment complaint was that the trial judge had not taken into account matters that he should have. The father asserted that on 25 June 2014, whilst hearing the father’s application that the trial judge should reconsider the suspension of time with the child, the trial judge:
a)ignored the father’s submissions that had been emailed to the court on 12 June; and
b)
had ignored his reference within the submissions to the decision
M v M.
In his reasons given ex tempore on the recusal application on 5 August 2014, the trial judge said he had no recollection of reading the emailed document but did not exclude the possibility that he had.
In our view, nothing turns on this issue because the father was present at the hearing on 25 June 2014 and had every opportunity to put whatever submissions he desired. At that interlocutory hearing and with the trial only weeks away, his Honour was determining the matter on the basis of the limited and untested evidence before him.
The reference to the authority of M V M, but not any specific principle, was the subject of discussion within the reasons. The trial judge said that it was an authority to the effect that the court did not have to make positive findings about sexual abuse but rather analyse the risks a parent might pose to a child. His Honour observed the case he was hearing was not a case involving sexual abuse but rather that the father was saying that the mother presented an unacceptable risk of harm to the child because of her long history of psychological or psychiatric illness. Even if the trial judge had not been aware at the June hearing that the father was relying upon some principle from
M v M, and it was not apparent that was the case, he correctly observed what responsibility the court had about findings at trial on the question of unacceptable risk.
Conclusion as to bias and pre-judgment
Nothing in the reasons of the trial judge nor anything else to which our attention was drawn that indicates prejudgment by his Honour. In his notice of appeal, the father referred, without citation, to Judicial Commission of New South Wales and in his summary of argument to the authority of Johnson & Johnson. The trial judge referred indirectly to Johnson & Johnson at [32] by reference to Helbig & Rowe.
His Honour observed that nothing he had done would have led the observer to think he had prejudged the case.
Thus, in our view, to the extent that the father alleges bias, the rejection of the oral application by the trial judge was correct. Nothing in any of the assertions indicates prejudgment. That complaint therefore has no merit.
The balance of the grounds
Procedural Fairness
As we have set out in [8(a)], the father asserts that the trial judge failed to give him procedural fairness, although that seems to be connected with the outcome rather than the conduct of the proceeding itself.
In the summary of argument, the father said that his Honour failed:
…procedure [sic] fairness as a result of surprise [sic] Interim [sic] proceedings not listed by the court to the parties, not following procedure, where his honour [sic] instructs registrar [sic] to dismiss previous applications not heard, but deemed vexatious on the father...”
We take that to mean that the trial judge followed a procedure unknown to the father or that he directed a registrar to deal with an application of the father in a particular way. To the extent that the father complained about earlier proceedings, nothing we have read indicates that he appealed against procedural orders (if they were made in his absence) or that the orders somehow infected the ultimate trial. Nothing was said to justify a conclusion that a registrar made any order prior to trial that was other than proper.
As we do not have all the transcript and no specific complaint was raised by the father, we have relied upon the reasons for judgment. Neither the summary of argument nor the father’s oral submissions asserted that the trial judge did not accurately record what occurred (save for the issues about his challenging the three specific expert witnesses, the transcript of whose cross-examination by the father we have now read).
The trial judge set out what each party sought by way of orders. His Honour explained the importance of cross-examination and the significance of expert opinion and how that could be forensically attacked at [62]. Similar observations of the trial judge can be seen at [92] where the relevance of the expert’s opinion and its significance in the witness forming recommendations was explained. Despite those warnings, the trial judge recorded that the father did not challenge the evidence.
That the father understood the nature and importance of cross-examination can be seen from his tendering in evidence a piece of the transcript of the
cross-examination of the mother during the committal proceedings in the Magistrate’s Court. The father used that transcript in cross-examining the mother about matters relating to rapes in her childhood. We return to that issue below.
Absent some other indication, and there was none, the father was given every opportunity to fully participate in the proceedings.
Although the father misconstrued the purpose behind the provision by the trial judge of the decisions in Cannon & Acres and Helbig & Rowe, we are satisfied that it was done appropriately to assist the father to understand the nature of the legal issues that required attention.
On appeal, the father complained the trial judge “directed proceedings” including, for example, he was not allowed to ask questions about the “stolen generation”. Leaving aside the question of relevance which was a matter entirely within his Honour’s responsibility, it was the obligation of the trial judge to conduct the proceedings as he did because of the provisions of Division 12A of the Act.
Division 12A of the Act concerns the principles applicable in the conduct of child-related proceedings. The application of those principles is mandatory
(s 69ZN(1)):
·Section 69ZN(4) requires the court to actively direct, control and manage the conduct of the proceedings;
·Section 69ZQ(1) requires the court to decide which issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
·Section 69ZX empowers the court to give directions or make orders about the matters in relation to which the parties are to present evidence including orders about expert evidence.
A trial judge is obliged to give effect to the principles and take control of the proceedings so that the focus is on achieving an outcome which is best for the child.
To the extent that the father complains that the trial judge directed the conduct of the proceedings, his Honour was obliged to do so.
Taking all of those matters into account, there is no merit in the father’s complaint that he was denied procedural fairness.
Failure to properly consider s 60CC of the Act and failure to properly consider the evidence of expert witnesses
In [8(b)], we have distilled the father’s various “grounds” of appeal into two namely that the trial judge failed to properly consider the factors required of him in s 60CC of the Act and had failed to consider the evidence of expert witnesses.
As can be seen from the judgment, much of the father’s case was about how he perceived his relationship with the child on the one hand and how she was at risk in the care of the mother.
It was not controversial and his Honour observed at [102] that the father had a good relationship with the child. The trial judge emphasised that he had seen photographs, cards and written material in which the child had expressed her love for her father and desired to spend time with him, including wanting to live with him.
On the question of the father’s case before the trial judge as to the risk of the child being in the mother’s care, it is relevant here to deal with a report by psychiatrist Professor Q.
Professor Q’s report
Attached to the father’s affidavit filed 10 February 2014 was a variety of documents to which no objection seems to have been taken by the mother’s counsel or by the Independent Children’s Lawyer. One such document was a voluminous report by Professor Q exceeding 100 pages in which she evaluated the psychiatric health of the mother in the context of her impending charges of attempted murder of the father.
At the time of the hearing of this appeal, we only had every second page of the Professor Q’s report (“the Q report”). Subsequently, each member of this Court was provided with the full copy and we have read it.
The father’s narrative in his trial affidavit wherein he incorporated by annexure, the Q report, was largely unintelligible but it would seem that he thought the report was relevant to show inconsistencies in the mother’s evidence to the trial judge and also to the earlier hearing before Benjamin J. Secondly, it seems he desired to show there was a risk that the mother might revert to her teenage behaviour and consequently, she was an inappropriate parent to care for the child.
The report shows Professor Q took an extensive history from the mother which included claims of her then six year old brother being abducted and sexually assaulted, her difficulties at school including being bullied, her use of drugs between 12 and 14 years of age, her overdosing at 19, her loss of a friend who was shot and working as an adult entertainer.
Professor Q was not a witness before the trial judge but his Honour referred to her report particularly about the mother’s childhood years (see [11]-[14]). As to its relevance and use as evidence, the trial judge said that in the context of the question of emotional harm to the child in the care of either parent:
It was also a matter which occupied a considerable part of the father’s written submissions to me. At page 7-8 he said as follows (spelling and grammar in original):
…
Mother doesn’t criticise her past upbringing, that is a serious risk as the mother cannot identify right from wrong of her own past upbringing, is the elements of unacceptable risk why this court cannot grant the mother any more comfort being the sole carer. Her previous husband doesn’t care of the instability that this mother has, then the two children one of them is [the child] needs to be re-instated with the father on a sole basis.
…
Do we see [the child] following the same mental impairment of (the mother)? Do we see [the child working as an adult entertainer]?, Do we see [the child] brought up in a ‘cult’ according to (the mother) that was acceptable being in a cult. (The mother) went to sleep with the cow’s evidence given by (the maternal grandmother). (The mother’s) beliefs of ghosts, demons and devils, do we see [the child] being psychologically disturbed by (the mother) mental impairment of her belief? [The child] quotes ‘daddy did you choke mum’, ‘daddy mummy told me my horse is dying’ mummy told me I be living with her and never coming back to you’ the child is in distress state, ‘mummy told me there are ghosts’. (The mother) using her distress on an innocent child to gain her own intimidation and manipulation on a 5 year old child. Do we see [the child] doing crimes in the future in re-adult lesson and adult lesson period?, without her father’s role model being absent in her life to serve her protect her from evil conduct of her mother , as her dad has full time commitment of looking and caring for [the child] being her primary attachment is to dad. [The child] wishers an view ‘don’t want to back to my mummy because I want you’, don’t’ want to go back to her’ ‘because I love you’, ‘I want to live with you’ that her dad, what about [the child’s] wishes and needs?
…
Dr [K] first report filed 3rd October 2008 in this court under the relationship on page 3 [working as an adult entertainer] on and off for some 7 years ‘she had won [an award]. Do we see [the child winning the same award?]
…
Maternal Mother conceded the mother didn’t tell her the taking drugs, being with a cult, burning down the house, or she was happy to say her daughter was a bickie, of the age of 16.
It is self-evident that the trial judge had the father’s material and read it.
His Honour made findings upon it.
To the extent that the mother’s earlier behaviour may have impacted on how the child developed and grew up was an issue of concern to the father, the trial judge said :
125.Other than the father’s assertion that the mother’s own teenage and adolescent behaviour might somehow transform itself into that behaviour being repeated by [the child], there was no material from which such a prediction could be logically made. I am not satisfied that such a conclusion is open on the evidence before me, and even if it were, I would not be prepared to make it.
It is apparent to us that the trial judge read all of the report of Professor Q as he did with other documents in the father’s “bundle of documents”. To the extent that the father intended the report to be read selectively, we have no indication other than from the judgment of the trial judge as to the use that the “bundle” was put. The whole of the Q report was in evidence including most importantly, her diagnosis and prognosis. At page 121, in relation to the attack by the mother on the father, Professor Q said:
It is my view that at the material time (the mother) was acting in defence of another. She perceived a real and eminent [sic] threat to her children, in particular to the life of [Z]. There seemed to have been reasonable grounds for her to develop that fear in view of the threat that she reports; there were also many vulnerability factors, as described above, that acted to intensify her fears.
Professor Q’s diagnosis was that the mother had been in a dissociative state and not just at the time of the stabbing of the father. As an example, Professor Q referred to a dissociative state whilst working and when having to deal with the father at changeovers of the child.
The prognosis however was that for the first time in many years, the mother felt safe and her mental disturbances were resolving. The psychiatrist opined there was a direct link between the cessation of the physical contact between the mother and the father and her mental health recovery. It is important here to note that this report had not been prepared for any family law proceedings. As if to have a bit each way, the father complained at [23] of his affidavit (to which he attached the report) that Professor Q had not interviewed him.
The trial judge had all of this material ironically provided by the father. To the extent that the father wanted to be selective about the use of that report, he certainly did not say so.
The judgment indicates that the trial judge was conscious of the father’s attack on the mother’s credit as well as her capacity as a parent. The father attached to his affidavit a piece of transcript from his own committal proceedings in a magistrates’ court in which his counsel cross-examined the mother about her childhood. This was presumably done by the father to show inconsistency between the mother’s evidence in the committal hearing and what she told Professor Q. The trial judge dealt with that as follows:
117.…The father produced what he said was a transcript of those proceedings, including an exchange between the father’s barrister and the mother, in which the mother asserted that her father had regularly raped her mother during her childhood. When that part of the transcript was put to the mother, she did not accept that was true. The maternal grandmother denied that she had ever been raped by her husband. The maternal grandfather denied that he had ever raped his wife. The material would not enable me to be satisfied on the balance of probabilities, given the gravity of the allegation involved, that there was indeed any rape of the maternal grandmother by the maternal grandfather. Even if there were, it is difficult to see how that would translate into an unacceptable risk of sexual abuse to [the child] in the mother’s care.
Certainly, the trial judge referred to the “somewhat strange history which
(the mother) has given to Professor [Q], amongst others, in relation to her life experiences” but his Honour did not say that he found the mother’s credit wanting.
As senior counsel for the mother observed, and we think correctly, the evidence of Professor Q was consistent with that of Ms B and Ms BK to whom we refer below and therefore supports the findings of the trial judge.
Also part of the father’s challenge is that his “material read into evidence was not challenge [sic]” by counsel for the mother and the Independent Children’s Lawyer. It is difficult to understand what this means but if it refers to his witnesses, there was no challenge (in the sense of being untested by
cross-examination) to that “material”. If the father meant that his lay witnesses who were not required for cross-examination and therefore his evidence was unchallenged, he would be correct. The trial judge said there was a “body of material” presented by the father showing that the child had an enjoyable time and that there was a good relationship. His Honour observed that that was not in dispute and that the focus of the experts’ concern was what would happen as the child grew older.
Thus, there is no merit in the father’s assertion that his “material” was not challenged by the other parties or (if that is what he is asserting) not considered by the trial judge.
Other matters said to arise under s 60CC
The father’s complaint concerning the application by the trial judge of the relevant factors in s 60CC of the Act is without any clear assertion as to what the error (if any) was. Before turning to what the trial judge said about s 60CC, it is important to see what evidence the trial judge otherwise had upon which findings were made. No specific challenge has been made to findings of fact.
Again relying on the judgment, the trial judge accepted the mother’s evidence that it was unlikely that physical harm would come to the child in her care.
His Honour noted that the mother gave unchallenged evidence about the warning of the onset of her dissociative episodes. In the event that such an event did occur, his Honour accepted that there were a range of supports in place for the child.
Absent the transcript, we could only turn to the father’s summary of argument as to what he challenged about the mother’s evidence. He used the following words about the mother:
[she] uses an inferior gravity that she cannot cope being sole carer.
Nothing in the report of Professor Q would suggest that the mother was incapable of caring for a child. Indeed, at page 123 of that report, Professor Q said:
…It is also apparent that the care of her children has been the organising principle of her life and she has aimed to do everything she can to provide the best for them…
The trial judge also referred to the transcript of the evidence of psychiatrist
Dr G in 2011 before Benjamin J. Dr G has since retired and her evidence was admitted without apparent objection.
Dr G concluded that there were two occasions where the mother had behaved impulsively and dangerously and on one of those occasions, the child could have been physically harmed. Dr G believed that the mother should be under the care of a psychologist or psychiatrist and that her prognosis was uncertain. That evidence was given in late 2011 and the examination by Professor Q was in December 2012. Subsequent to those opinions, the trial judge had the benefit of evidence about the mother’s health from family consultant Ms B and nurse Ms BK.
More generally, the father asserted that the trial judge did not apply s 60CC of the Act or if his Honour did, he did so inappropriately. Apart from a general complaint which we interpret as meaning that the trial judge came to the wrong conclusions, the summary of argument of the father does nothing to assist in discerning what error is asserted.
Ground 6 of his notice of appeal contains a series of complaints some of which have already been dealt with. To the extent that we have not, we do so now. The father asserted:
·The trial judge accepted the family report recommendation prior to trial;
·The trial judge intervened and refused to allow cross-examination by the father of the family consultant on the question of the stolen generation;
·The trial judge should have accepted that the child was at risk with the mother and that that risk was unacceptable;
·The trial judge “failed s 128 of the evidence act [sic]”;
·The reasons and judgment at trial were “impracticable and unjust to the child [sic] best interest”;
·The trial judge did not follow the expressed views of the child wanting to live with the father; and
·It was manifestly excessive to suspend the father’s time with the child until she turned 18 years of age.
A significant complaint by the father is that the trial judge gave no weight to the views of the child as required by s 60CC(3)(a). The trial judge found that the father’s recording of a conversation with the child, to which he pointed as evidence of the child’s views, was manipulated. Having read a transcript of the recording by the father, it is hard to see how any other conclusion could be drawn than that which was drawn by his Honour.
His Honour dealt with the views expressed by the child extensively in [130] to [133] of his reasons. His conclusion was:
133.This confirms my opinion that the father has been coaching the child in relation to making statements about where she wishes to live. On that basis, and given the clear conflict that the child is experiencing arising from the tension between the competing proposals of the mother and the father, I would give any expression of her wishes very little weight.
The charges resulting from the mother’s allegation that the father had raped her
The issue of how the trial judge was to deal with the allegations and indeed, the charges, against the father appears to have confused the father. Before trial, his Honour noted that neither the mother nor the Independent Children’s Lawyer had asked him to make a finding of rape but rather one of “non-consensual intercourse” and he noted that the father denied all such allegations.
The trial judge made clear he was approaching the matter on the basis that the mother made allegations of non-consensual sexual intercourse and that, as they were relevant to the question of the father’s conduct and its impact on her, she had to prove them on the balance of probabilities.
As we have earlier indicated, it is now common ground that charges against the father of raping the mother have all been withdrawn by the Crown.
There was no specific ground of appeal that we could discern on this issue and in his summary of argument made unintelligible statements such as
“father denied and vigorously defendant [sic] this false allegation, rape under the interpretation act and his honour erred in law”. On the assumption that is an allegation that the trial judge either had no evidence to make the finding that he did, or that the issue was irrelevant to the determination of the parenting case, a careful examination is warranted. The issue is directly relevant to a question of parental responsibility, family violence, capacity and responsibility as a parent.
The trial judge referred to the mother’s evidence as being highly specific as to time, event and detail. His Honour said that the mother was able to accurately recall conversations and the features of those events.
Perhaps surprisingly, because the father wanted the report in evidence, the graphic detail was laid out in the report of Professor Q.
The trial judge found that the allegations were serious and there was little, if any, challenge to them by the father. As to whether such a finding was open on the evidence, his Honour noted that there were three matters which, to an extent, independently corroborated the mother’s position. Two of those related to statements made by the father in the hearing before Benjamin J which could only be described as ambivalence about whether the mother was consenting or not. The third related to the mother supposedly attempting to extort money from him and when that failed, fabricating the allegation of rape. His Honour found that an examination of the counselling notes in evidence of the mother’s then treating psychologist, Ms R, refuted the allegation.
The father did not point to anything to indicate that the trial judge was wrong in drawing those conclusions as to corroboration of the mother’s allegations.
The trial judge then found that “on occasion”, the father engaged in
non-consensual sexual intercourse with the mother. This, said the trial judge, was indicative of the father being prepared to use physical force to achieve his desires from time to time and was a manifestation of the father’s controlling and domineering behaviour stemming from his personality generally.
The complaints by the father upon appeal that the rape charges had been withdrawn against him (and therefore that the findings of the trial judge were wrong), the assertion that the trial judge had misinterpreted the law and to the extent that he asserts an error in law because of “excessive gravity, miscarriage of justice”, have no merit.
Complaints about the findings of the trial judge
The father set out a variety of paragraphs and in some cases (such as in relation to [134]) said that there was no evidence and that it was an error of fact. In that particular paragraph, the trial judge noted that the father said that he had some reservations about the “mother’s partners” but the detail of those concerns had not been explored in the evidence. Nothing was put to witnesses to say that the child did not have a good relationship with her mother. The same was said by the trial judge of the relationship between the child and the maternal grandparents.
Overall, the trial judge found:
·The father displays personality traits which are coercive and which use a variety of anti-social means to achieve his desired objectives;
·The father was focussed upon his own needs and not others;
·He was entirely focussed upon meeting and satisfying his own goals and satisfying his own needs;
·The child’s relationship with the father will come into conflict with the father’s needs as she ages and to meet his own needs, the father would deploy techniques such as accusation, deception, manipulation and deceit. Consequently there is a real risk of harm to the child by the father’s personality traits;
·Continued interaction by the mother with the father in relation to the child is likely to significantly affect her psychological health and ability to cope;
·The father does enjoy a good relationship with the child who was attached to both parents and loved each of them;
·If the child were to wholly cease having contact with the father, the impacts upon her will be substantial and significant but with assistance, she would be able to ultimately cope;
·There is a real risk if there is continued interaction between mother and father in relation to the child that the mother will attempt and perhaps succeed in taking her own life or alternately attempt to take the father’s life leading to the substantial risk of incarceration;
·The loss of the child’s primary attachment to her mother would be cataclysmic;
·The loss of the child’s relationship with her mother would be profound;
·There was not a risk of sexual harm to the child in the mother’s care
·There was not an unacceptable risk if the child was spending unsupervised time with her mother;
·There was a risk of physical harm to the child in the mother’s care but it was not assessed as unacceptable;
·There was not a risk of emotional harm to the child living with or spending unsupervised time with the mother;
·The child’s views were heard in the recorded conversation but as that was manufactured evidence it had little weight;
·The child’s expression of her views should be given very little weight;
·There was family violence relevant in this case with the mother having been convicted of unlawful wounding of the father but otherwise, the mother was not “domestically violent”;
·The father would on occasion, engage in non-consensual intercourse with the mother;
·Non-consensual sexual intercourse is violence and whether or not the father may be liable to conviction for the criminal offence of rape was not to the point.
On all the evidence, including that of the expert witnesses, those findings were all open to the trial judge.
Failure to consider the father’s evidence or his witnesses
To the extent also that the father complained that the trial judge had not taken into account or given weight to the evidence of his own psychologist, a Ms D, his Honour did not need to deal with that issue because the father’s capacity to care for the child and her relationship was not in dispute. The purpose for which the letter of Ms D was tendered remains unclear but it seems to have also found its way into evidence without objection. Although the trial judge did not specifically refer to it, we do not consider it would have assisted.
The father also claimed that the trial judge had failed to consider the judgment of Judge Coker in relation to the mother’s contraventions of orders.
At [29] of the judgment, the trial judge referred to the reasons delivered by Judge Coker on 19 August 2011 and his Honour’s orders for make-up time. The trial judge (at [219]) said that the contravention evidence did not affect his determination.
Nothing in the reasons of the trial judge indicates that it was not open for his Honour to accept the evidence of the mother as his Honour did.
To the extent that the father asserts error in the trial judge not taking into account his evidence or conversely, accepting the mother’s evidence to not “reinstate” the child into his care, those complaints have no merit.
There is therefore no substance to the complaint we have identified in [8(e)].
The trial judge wrongly accepted the expert evidence
By our identification of the complaint in [8(b)], the father complained that:
·
family consultant Ms B had not read the report of
Professor Q;
·Ms B had become embroiled in helping the mother’s “recovery” that is, some form of professional impropriety;
·The trial judge erred in accepting the opinion of Ms B; and
·Nurse Ms BK was not qualified to give the opinion she did.
These can be dealt with sequentially.
On the morning of 6 August (the third day of the trial), the father began his cross-examination of Ms B. The transcript shows he specifically asked
Ms B whether she had read Professor Q’s report. She replied she had.
The father asserts Ms B said she had not. That assertion was one he repeated on appeal even to the point that he said that Ms B conceded that she had only read the mother’s material. It was clearly one of the first subjects of the father’s cross-examination of Ms B. It is hard to understand how the father could put such an assertion.
The father also asserts that he challenged the expertise of Ms B, Ms BK and
Ms MK. The transcript shows his Honour gave the relevant warning to the father but he continuously ignored it and, having read the transcript of the father’s cross examination, there is no substance to the father’s complaint.
The father certainly cross-examined Ms B about her experience but at no stage did he suggest she was not appropriately qualified. Indeed, the trial judge questioned Ms B about whether she had been fulfilling a social worker role in a previous professional role in a prison. Ms B agreed she was a psychologist not a social worker. At no time did the father suggest that as a psychologist she was not capable of giving expert opinions on child-parent relationships.
The father complained in the narrative of his notice of appeal that Ms B was personally involved in the mother’s “recovery” including in her therapeutic counselling and had “breached her oath of service”. It is not entirely clear what the challenge is but it could only be as to competence or lack of objectivity. None of the cross-examination by the father suggested anything of the kind.
The trial judge (at [76]) noted that the father did not seek to have
Ms B’s evidence rejected for any lack of factual basis or for want of experience or training such as would exclude her opinion. Having read the transcript, that finding is correct.
The relevance of the evidence of Ms B was identified by the trial judge
(at [61]) as to the risk to the child as to emotional harm as well as physical and sexual abuse. The trial judge appropriately identified the nature of the evidence to be given and was satisfied that Ms B was qualified to give it.
The trial judge rejected the allegation that Ms B was biased or partisan. There is no substance to the father’s complaint.
In a similar way, the father challenged the weight the trial judge gave to the evidence of Ms BK. Ms BK is a nurse working in a Queensland mental health service psychiatric team led by a psychiatrist.
At [93], the trial judge set out the team approach of the Queensland health service and for the purposes of relevance, noted that the evidence was about the mental health of the mother. His Honour described Ms BK as a major provider of mental health care for the mother. This evidence was clearly relevant as to the mother’s capacity as a parent, the anticipated dilemma of the separation of the child from the mother and ultimately, to the question of the vexatious proceedings order.
The trial judge noted the evidence of Ms BK and her involvement in dealing with the mother including the mother’s indisposition on the second day of the trial. On appeal, the father disputed the trial judge’s reference to the fact that he did not challenge Ms BK’s evidence in cross-examination. Having now read the transcript of that cross-examination, the trial judge was correct. There is therefore no substance to the father’s complaint identified in [8(b)].
The Part VII issues
The trial judge turned his attention to parental responsibility and as he was required to do, commenced with the presumption of equal shared parental responsibility.
His Honour found that s 61DA did not apply because there was a reasonable basis to believe that there had been family violence. His Honour found that even if the presumption was applied, it would not be in the best interests of the child for the parents to have equal shared parental responsibility because of the hostile relationship between them.
As to who should have that responsibility, the trial judge decided that for
long-term decision making, the party who had the predominant care should be given that task because anything would otherwise be “completely unworkable”.
Having contemplated all of the s 60CC factors, the trial judge found that
a comparison of the level of nurture and care afforded to the child by her mother was much more in her interest than the primary care provided by the father. His Honour referred to his finding about the controlling and dominating behaviour of the father and the difficulties that would present as the child grew older.
The trial judge noted that the child had flourished in the mother’s care and there was a sibling Z to consider. His Honour found that the father would not facilitate the child’s relationship with the mother in any meaningful sense.
The trial judge determined on those findings that the parent who should have the major caring role of the child was the mother.
As to what relationship the father should have with the child, the trial judge found the father:
a)would not stop “unless and until he achieved his ambition of destabilising the mother to obtain the sole care of [the child]”; and
b)would use any opportunity to seek to exploit and destabilise the mother’s mental health conditions.
In his Honour’s view, these would have a detrimental effect on the child.
The only remaining parenting issue was what relationship the child should have with her father. His Honour contemplated alternatives to complete exclusion of the father’s time with the child but found there was no alternative.
Miscarriage of justice
We have already dealt with the father’s assertion [8(b)] that the trial judge failed to give proper consideration to the factors required of him in s 60CC. Those matters were all assessed by the trial judge in the context of his Honour’s findings on the evidence. In his final complaint, the father asserted that the duration of the order was a miscarriage of justice. The trial judge made it until the child turns 18 years of age. The father described that as manifestly excessive.
The summary of argument filed by the father did not enlighten us as to the basis behind this particular complaint. He asserted that:
a)when he challenged the family consultant’s recommendations, she had no “cognitive experience” (by which we presume he was referring to the impact on an order of that duration and effect);
b)the trial judge was “submissive” when making the order until the child turned 18 years and that it was a “criminal act”; and
c)an order (of that duration) was a breach of the Act.
Section 64B(2)(b) of the Act provides that a parenting order may deal with the time that a child is to spend with a particular person. Obviously, when a child turns 18 years of age, the order ceases as does the jurisdiction of the court in relation to that person.
Section 65D provides that in proceedings for a parenting order, the court may, subject to the presumption of equal shared parental responsibility arising from the making of parenting orders, make such parenting order that it thinks proper. The trial judge had the power to make an order to last until the child turned 18 years of age.
The trial judge contemplated the exclusion of the father saying it should only be done with considerable hesitation. But, his Honour (at [186]) said that the prospect of the harm that would be suffered by the child in the event that the mother continued to be involved with the father outweighed the harm of not having contact with the father.
In a discretionary jurisdiction, the discretion of the trial judge is well understood. It was clearly enunciated in House v The King(1936) 55 CLR 499, at 504-505 that:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
Similarly, in Gronow v Gronow(1979) 144 CLR 513 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
The conclusion his Honour reached was open to him on the evidence and he was acutely aware of the seriousness of the orders he was making.
All of these findings were open on the evidence and thus, any assertion of a miscarriage of justice cannot be sustained.
The appeal must fail.
The vexatious proceedings order
Although there is no specific ground of appeal about the vexatious proceedings order nor did the father raise it in argument, because the father appealed all orders, it needs to be addressed.
The mother had sought an order precluding the father from bringing further proceedings other than with leave. The foundation for her ultimate concern can be seen from the evidence before the trial judge about the impact of any contact between the mother and the father.
The trial judge set out the relevant provisions of s 102QB of the Act and turned to the decision of Benjamin J in Cannon & Acres.
The referral by the trial judge to the decision of Cannon & Acres was the subject of considerable complaint by the father to which we have already referred. Because there was no argument on the issue of the correctness of that decision, we do not need to address it.
The trial judge referred to the father’s involvement vis-à-vis the mother in Supreme Court of Victoria proceedings between 2007 and 2009 over a caveat and then costs of those proceedings along with a consequential appeal to the Court of Appeal in Victoria which was dismissed. The trial judge found that the father was motivated primarily to harass and annoy the mother.
The trial judge referred to bankruptcy proceedings brought by the mother in the Federal Circuit Court on a creditor’s petition against the father because he had not paid the $75,000 costs awarded in the earlier Supreme Court proceedings. The father defended those proceedings and lost.
There were child support review proceedings which went from the Child Support Agency to the Social Security Appeals Tribunal and the trial judge found that the appeal was based on a motivation by the father to annoy and harass the mother.
There were Magistrate’s Court domestic violence proceedings where the trial judge found that the magistrate made the order on a finding that there was continual harassment of the mother by the father. Despite that, the trial judge said that he was unable to conclude whether the father was instituting or conducting vexatious proceedings.
The trial judge then set out the long line of Family Court and Federal Circuit Court proceedings from 2007 onwards some of which he found to be vexatious and others not.
The trial judge accepted that it was a grave matter to deny a parent the opportunity to litigate in relation to their child but found that if there was
a legitimate basis for further litigation, the court would no doubt give the father leave. The trial judge went on to say:
However he cannot be trusted with the unfettered right to issue proceedings against mother in relation to the child, because he will abuse it.
The trial judge then made the vexatious proceedings order. As we have indicated, the father did not specifically raise this as a ground of appeal nor did he make any submission, either in writing or orally, directed to it. There is nothing to suggest that the findings by his Honour were incorrect and, in our view, the finding that he made in respect of those various proceedings was open to him. To the extent therefore that the father intended to appeal against that order, his appeal has no merit.
Conclusion
No error having been established, the father’s appeal is dismissed.
Costs
At the conclusion of the appeal, we enquired as to the parties’ respective positions in relation to costs. Senior counsel on behalf of the mother indicated that if the appeal was not successful, the father should pay her costs. She relied upon an affidavit filed on 8 October 2015 in which it was said that the mother had expended (to that point) legal fees which were estimated at $400,000.
A similar application for costs was made by the Independent Children’s Lawyer.
The father’s position was that if he was unsuccessful there should be no order as to costs because he was a Centrelink recipient and he could not afford to pay them.
In relation to the respective financial positions, we were informed that the mother was a legal aid recipient and the Independent Children’s Lawyer was similarly funded.
Albeit that the father is in receipt of social security benefits, the trial judge found that he regularly received financial assistance from his parents who pay his rent. He provided no voluntary contribution towards the costs of the child but the trial judge found that at the same time, he continued to attend adult entertainment venues for the purposes of consuming alcohol. His Honour made the observation that money was being expended on entertainment when it could be spent on the child.
Whilst s 117 of the Act provides that in proceedings under the Act including appeals, each party shall pay their own costs, the court is entitled to make an order for costs if it considers that there are justifiable circumstances.
Here, much of what the father presented was unintelligible and as we have said, attempts to alleviate the confusion simply compounded it. None of the grounds of appeal had any merit and to the extent that the father complained about the evidence upon which the determination was made, much of it was his own doing because he did not challenge that evidence in cross-examination. In our view, there is sufficient justification for departing from the principle that each party pays their own costs. Impecuniosity is not a bar to making an order for costs if the other conditions of s 117(2A) or any of them are met (see D and D (Costs) (No 2) (2010) FLC 93-435).
The community, through legal aid funding, has been put to the expense of supporting the mother and the Independent Children’s Lawyer in an appeal which has been found to be devoid of merit. The father should pay the mother’s costs and those of the Independent Children’s Lawyer.
For the purposes of s 117(4) of the Act, the father has not received legal aid and having regard to our earlier remarks picking up the reasons for judgment of the trial judge, we do not find that bearing a portion of the costs of the Independent Children’s Lawyer would cause the father to suffer financial hardship. In those circumstances, an order in favour of the Independent Children’s Lawyer should be made.
Both the mother and the Independent Children’s Lawyer sought costs of $4,040.70. Whilst both those claims for costs were said to be based on the Legal Aid Queensland rates, it is Schedule 3 of the Family Law Rules 2004 (Cth) (“the Rules”) that applies.
The costs sought are within the recognisable range of sums allowed by Schedule 3 of the Rules. There will be orders that the father pay $4,040.70 to each of the solicitors for the mother and the Independent Children’s Lawyer.
I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May and Cronin JJ) delivered on 24 May 2016.
Associate: M.
Date: 24 May 2016
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